[rubyruby27]

If a decision is being appealed how is that looked up by the courts.

I called and talked to Lisa Anderson with AFNI, she was very polite and professional.

During our conversation she told me what evidence they have regarding this cell bill, I told her that the info I have is conflicting. She ran down the charges.

She stated what I owed according to her records and they added a 51.34 collection fee per the contract, which I don't have in my possession from 1996

I mentioned that I was aware of a recent case which was Seeger V AFNI that posting a collection fee is illegal. She said this case was on appeal.

During this time frame while the case is on appeal how is it viewed by the courts if I am forced to sue them.

I have them for factoring and putting thier TL on my reports as an active open account that recently went into collections.

She stated the FCRA date according to the date that was supplied to them from ALLTEL is 1/07/03 and they were nice enough not to add the addition 6 months. (yea, right , alltell added 6 months).

I told her that I disputed this debt in 07 when I recieved thier first communication and I never recieved verification/valdiation of this debt yet they continue to verify thier TL.

She asked me what I wanted I told her at this point I want them to remover thier TL otherwise I will find it necessary to seek other avenues.

She said OK, I understand you want this removed but what are you going to do about paying this debt. We will send you the doucmentation for you to review and if you would like to call us back then (implying to make payment arrangements) please feel free.

We ended up the conversation with----(me) I was trying to do this the simpliest and easiest possible way, its apparent this is not going to be the case. I will send you a follow up letter in regards to this conversation and my intentions.

If I was forced to sue them and used this case, will a Judge negate this ruling if its on appeal. If not then its added expense to them to appeal another case.

Looking for avenues to try and convince them this isn't worth the trouble, remove it.

[centex]

The problem you run into in basing an appeal on an Opinion that is itself being appealed is that if that other case is overturned, it cuts the legs out from under you.

In this instance, aside from the collection fee (which was likely addressed in the original contract), do their numbers match what you defaulted on? If so, then one place to begin the discussions is to get them to waive the fee and negotiate from there. Lisa is relatively easy to work with...

Another question to be addressed is whether they actually own the paper or whether it is placement paper...

[centex]

Having just read Seeger, it is also important to remember that the finding on summary judgment is expressly conditioned on the case being affirmed. Given that the case has already been appealed, complete with the bond being posted, I would not try and rely upon a wobbly decision from beyond your Circuit.

Addionally, it is absolutely important that you understand the fundamental issue that was litigated...does Florida have a statute that expressly forbids the addition of a collection fee? That was the basic issue in Seeger. Absent the State statute, there appears to have been no argument that the fee was improper.

[rubyruby27]

Thanks for the answer I am trying to find out if Florida has this law, I am hoping that Fraud or Enigma knows or they can direct me in the right area to search.

Again I have credit reports that indicate 2 different accounts, amounts our different and they were opened at different dates.

They are posting in the open credit and not in the collection section, it appears that I recently defaulted on this.

She said the OC said the FCRA date is 1/7/03----The OC has on my reports to be removed or go positive 6/09-10/09.

The CRA are follwoing those time frames on AFNI TL and not what AFNI has posted as date of 1st delinquency as 1/2003.

By stating the date of 1st delinquency is 1/2003 is false and misleading am I correct.

Please don't take this wrong, I do value your opinion, but I thought in the Seeger case the Judge said that even if the state allowed it, the JDB could not add this fee, but the fact the state didn't allow it either it was a no brainer.

I will re read that section again.

If the courts uphold this ruling then they I have something to go by. I don't believe there is any case law in Florida on this matter. However, I haven't look at case law in Florida in almost 2 years. Is it worth the risk of me suing them and winning and then they have to appeal in this State for 400 (to them maybe 12.00). I would think they would remove thier TL.

Thanks for responding.

[rubyruby27]

Yes, they own the paper.

I posted this thread and it didn't post right away so I re posted then it appeared.

So many thanks for responding.

[centex]

Originally Posted by rubyruby27

Please don't take this wrong, I do value your opinion, but I thought in the Seeger case the Judge said that even if the state allowed it, the JDB could not add this fee, but the fact the state didn't allow it either it was a no brainer.

I will re read that section again.

If the courts uphold this ruling then they I have something to go by. I don't believe there is any case law in Florida on this matter. However, I haven't look at case law in Florida in almost 2 years. Is it worth the risk of me suing them and winning and then they have to appeal in this State for 400 (to them maybe 12.00). I would think they would remove thier TL.

Thanks for responding.

The original claim in Seeger was the fee being contrary to Wisconsin statute. During the MSJ (which were filed by both parties, and partially granted and partially denied with respect to both parties), there is discussion about whether the underlying contract allowed the fee to be charged by the holder of the paper (applying the same logic even to the OC in this instance). The argument made by the judge in the 44-page Opinion is that the collections needed to go to a third-party for the holder to collect a fee that did not exceed the amount outlined in the Agreement. In other words, even Cingular and its predecessor entities would have had to farm the paper out to collect a fee.

The problem you run into with that component of the argument is that you don't even know what your contract allowed for because you no longer have a copy of the Agreement.

In light of the original issue presented being related to Wisconsin statutes, the lack of knowledge about the terms of the Agreement you had with a carrier AND the fact that Seeger has been stayed pending the appeal, it simply is not something that I would anticipate a Florida court being willing to find persuasive, much less compelling.

Given that you are attempting to refi and this is allegedly the only obstacle, then unless the underlying amount is the result of identity theft, your best bet is to get Lisa to agree to waive the fifty bucks, delete the account and you pay some negotiated figure...both parties then walk away getting what they needed. My god, it was a cell phone bill...how much could it have been? Given the roughly fifty dollar fee, that suggests it is in the range of $360 or so and I'd bet that if you called Lisa back and offered $120, you could get the deletion that then permits you to gain the approval on the refi.

[jlynn]

Originally Posted by centex

Given that you are attempting to refi and this is allegedly the only obstacle, then unless the underlying amount is the result of identity theft, your best bet is to get Lisa to agree to waive the fifty bucks, delete the account and you pay some negotiated figure...both parties then walk away getting what they needed. My god, it was a cell phone bill...how much could it have been? Given the roughly fifty dollar fee, that suggests it is in the range of $360 or so and I'd bet that if you called Lisa back and offered $120, you could get the deletion that then permits you to gain the approval on the refi.

From my reading of your post in the mortgage forum Ruby, you don't even need the deletion, it only needs to be paid. Maybe its time to move on, the money saved on your refinance has lots of value.

[rubyruby27]

I wish it was that easy its not. No I have the old cap one for 800 I absolutely will not pay unless I find a way to hire someone to sue them. I did not ever charge on this card.

I have an old BOA/MBNA/WACHOVIA/who knows card. for a fw hundred while I could pay them all, bottom line BOA and Cap One will not work with you or they will not work with me should I say on removing thier trade line.

If they don't report 0 balance then its a no go.

My roomate is the co owner and she has an account that is similar to my situation.

If I can't get cap one off there is no need to pay any of them, I should just collect everything and go to a lawyer and wait it out.

Thanks for your help.

[centex]

Originally Posted by rubyruby27

I wish it was that easy its not. No I have the old cap one for 800 I absolutely will not pay unless I find a way to hire someone to sue them. I did not ever charge on this card.

And what was their response when you provided them with a copy of a police report outlining the identity theft?

If I can't get cap one off there is no need to pay any of them, I should just collect everything and go to a lawyer and wait it out.

The reality is that not every defaulted debt is worthy of litigation.

[rubyruby27]

Centex, the Cap One was not ID theft it was a billing error that I disputed almost 7 yrs ago. They claimed I charged something I didn't charge--the company involved said that it was a cap one error this went back and forth for a while. I didn't do it in writing with cap one, but I did with the merchant.

No not all are worth litigation. however after suffering 7 yrs with them on my credit report and jacking up the amount owed to 800, I am not going to pay them. I can't refinace owing more than 500. So I guess I have to make some decisions.

I can pay them without negotiating and then file suit for violations, or I can negot. a settlement.

[centex]

A nearly seven year old billing issue would not survive summary judgment if you attempt to litigate with CrapOne...your limitations for that claim expired LONG ago.

[Enigma]

Which is more important, less than $2k now or potentially $10's of thousands over the lifetime of the mortgage?

[rubyruby27]

Yes, I know plus I didn't do it in writing. My options are limited but thier open.. Its well beyond the SoL, and they have violated with thier TL. I was hoping they would sue me so I could defend and go for counterclaims.

Will have to find another way to correct this problem.

I really do appreciate your responses, thank you.

[rubyruby27]

Enigma,

While I could pay these, my roommate has a problem with Arrow, she never followed through on what I told her to do. So they are stil on her report at 9000.

Now I can pay my JDB's and she can pay her one still on her report besides Arrow. We actually can set them up, since they have violated a thousand times.

I spoke with the broker and he is willing to give me an official letter stating the loan was declined due to Arrow's TL, once we pay the others off. Thats an option.

If its going to take a while to eliminate Arrow on her report then I am in no hurry to eliminate mine and at this point I might as well get an attorney and sue them for violations.

I just wanted to make this simply and easy by finding ammunition so I could negot. with the JDB's to eliminate thier TL's. It doesn't appear this will happen.

While its taking time, we both have good to excellent scores.

I have run the numbers if we pay everyone off including arrow, then it will take us 4 years to break even. So I have 2 more years to do something.

Everything happens for a reason. I can only assume something better will happen. While we have a 5.875 rate I can only hope it goes lower and that's why things are happening the way they are.

Thanks for the reply

[rubyruby27]

I do have one question before I do something stupid. If you would just verify my understnding of the SoL.

In Florida the only thing that can restart the clock on a 4 yr oral is bringing the account current. (this is a store card that arrow has)

If she went into a hardship program in 03/04 that reaged the account that does not effect the SOL for litigation in Florida. Am I correct.

If I am correct this makes things eaiser.

Thank you for your help.

[Enigma]

95.051(f) The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

If it can be proven it was a written instrument, then partial payments toll the SOL.

and

95.04 Promise to pay barred debt.--An acknowledgment of, or promise to pay, a debt barred by a statute of limitations must be in writing and signed by the person sought to be charged.

95.031(1) A cause of action accrues when the last element constituting the cause of action occurs. For the purposes of this chapter, the last element constituting a cause of action on an obligation or liability founded on a negotiable or nonnegotiable note payable on demand or after date with no specific maturity date specified in the note, and the last element constituting a cause of action against any endorser, guarantor, or other person secondarily liable on any such obligation or liability founded on any such note, is the first written demand for payment, notwithstanding that the endorser, guarantor, or other person secondarily liable has executed a separate writing evidencing such liability.

It could be argued that since she was in a hardship program all the elements that would start the clock running have not been met.

[rubyruby27]

Thanks

No, it wasn't in writing and it is a store card (it could only be used in one store)which is according to my understanding is a 4 yr SoL, not the iffy 5 yr written.

The date of firt delinquency and never brought current even in a hardship program would be the date the SoL started.

For credit reporting purpose this would effect the 7 yr reporting period.

If I can get arrow off of hers quickly then I will probably, negotiate a settlement on the others.

Thank you